Insight, analysis & opinion from Joe Paduda


Why all the sound and fury about the individual mandate?

The objections to the individual mandate are loud, frequent, and hyperbolic. What they are not is credible.
Much of the criticism of the mandate appears to be coming from people and organizations that previously supported a mandate. That’s why it is so difficult to take them seriously.
Here are a couple examples.
Mitt Romney, who could teach a kite a thing or two about moving with the political winds, signed a bill into law saying it was “a personal responsibility principle”; a bill that was pretty similar to the one he now describes as “an unconscionable abuse of power.”. (and yes, Romney did endorse a Federal mandate)
Romney also said “Some of my libertarian friends balk at what looks like an individual mandate. But remember, someone has to pay for the health care that must, by law, be provided: Either the individual pays or the taxpayers pay. A free ride on government is not libertarian.”
– Sen Orrin Hatch (R UT) cosponsored a bill that required a universal mandate back in 1993. Today, he says:””If they mandate you have to buy insurance, it’ll be the first time in this country that the government can tell you what to buy,” said Hatch, warning the measure could portend even more government control in the future.”
– Newt Gingrich, who backed a mandate back in 2008, and…doesn‘t now.
Many of the loudest objectors were strong supporters of the mandate in the past, including the worthies at the Heritage Foundation. Here’s what they said then (text spacing issues from original):
The second central element-in the Heritage proposal is a two-way commit ment between government and citizen. Under this social contract, the fed eral government would agree to make it financially possible, through refund able tax benefits or in some cases by providing access to public-sector health programs, for every American family to purchase at least a basic package of medic a l care, including catastrophic insurance. In return, government would require, by law every head of household to acquire at least a basic health plan for his or her family.Thus there would be mandated coverage under the Heritage proposal [emphasis added], but the mandate w ould apply to the family head, who is the appropriate person to shoulder the primary responsibility for the familys health needs, rather than employers, who are not.
And here’s what they say now:
This “personal responsibility” provision of the legislation, more accurately known as the “individual mandate” because it commands all individuals to enter into a contractual relationship with a private insurance company, takes congressional power and control to a striking new level. Its defenders have struggled to justify the mandate by analogizing it to existing federal laws and court decisions, but their efforts do not withstand serious scrutiny. An individual mandate to enter into a contract with or buy a particular product from a private party, with tax penalties to enforce it, is unprecedented– not just in scope but in kind–and unconstitutional as a matter of first principles [emphasis added] and under any reasonable reading of judicial precedents.
Which leads to the question – why have Romney, Gingrich, Hatch, and Heritage (amongn others) changed their view? Could it be due to a re-reading of the Constitution? New evidence that the original authors didn’t want universal health care?
Or could it be that no one to the right of center wants to say anything neutral, much less positive, about anything the President and his fellow Democrats advocate?
Why is this? The reform plan, which has more than its share of warts, doesn’t include a public option, has a relatively weak mandate mechanism, relies on private insurers to provide coverage, and doesn’t do anything to manage price or utilization.
One would think all conservatives wouldn’t find that so universally objectionable.
This doesn’t make sense at any level; their flipflopping is patently obvious and readily identified, and all the Dems have to do is advance increasingly centrist ideas and watch while the GOP partisans howl in outrage, backing themselves into a really small corner.
If they don’t wise up, they’ll find themselves a very, very small party.
There’s a lot left to do to truly ‘reform’ health care. Without the contributions of legislators from all parts of the political spectrum we will end up with a system designed by one party. Some will never ‘buy in’ to that system, no matter how moderate and effective the reforms may be.

18 thoughts on “Why all the sound and fury about the individual mandate?”

  1. Joe,
    I have enjoyed reading your updates/inside scoop over the years. However, your one-sided views over the health care debate are getting too much to stomach. Unless your goal is to cater to the liberal audience, I suggest you go back to the basics of investigative reporting and leave your personal opinions out of the equation.

  2. Chris – I’m glad you have found MCM to be an enjoyable read.
    Re your comment, I’d suggest you read more of what I’ve written about the reform process and my objections to how the Dems have handled this. I’d further suggest you read objectively; my views are most definitely NOT one-sided, my research is objective, and the facts are what the facts are.
    More specifically, where, exactly, is the error in this post? The flipflopping reported here is not my ‘personal opinion’, it is a matter of public record. If you don’t want to read material that causes you angst, that’s your decision.
    My blog has been, and will always be, my interpretation of what I see hear and read. There are plenty of places you can go to read stuff that reinforces your opinions. I have 1892 other subscribers who value objectivity and reasoned interpretation.

  3. Joe:
    Classic “attack the attackers” to deflect from the real argument. I could give a rat’s behind about who said what when. Just because someone said something at some point in the past does not invalidate their arguments today. At best, you can point out their inconsistencies, but their current argument is left intact.
    I feel confident that at least the “individual mandate” portion of the bill will be thrown out.
    What worries me is when it is thrown out, assuming the whole bill isn’t tossed, what will we be left with? Gone will be the flood of new subscibers to cover increased costs and up will go premiums in order to meet new coverage requirements. Classic economics.
    It’s always startling to me to see those who attempt to correct an ill without proper eceonomic reasoning. They are forecver condemned to play “whack a mole,” while the rest of us, the responsible “forgotten ones,” are left to foot the bill for their folley.

  4. I couldn’t agree more. And since when has the government not been able to tell people what to buy? Is an individual mandate any worse than making you pay taxes and then having the govt spend it on things you might not want to buy, even if some of it is for your own good? Most people would say no (except for some Tea Partiers who would rather do away with all taxes and all govt).
    Forcing some misguided people and some legitimately self-insuring super-healthy and/or super-rich people to buy subsidized health insurance (or pay a small fine to help pay for uncompensated care) is a small price to pay for the elimination of limits on pre-ex conditions and pricing based on health status.

  5. This post is a classic. It makes my team look small. I still find myself wishing the Government would stay out of my business and let me keep my hard earned money so I can take care of my family and community
    around me.

  6. Allen – no, there’s no interest here in deflecting attention from the real issue.
    this post is specifically about hypocrisy and the politicization of the health reform process by individuals and organizations who are willing to do anything in the name of demagoguery. That’s the real issue in this post. I’d suggest you set aside your partisanship and read objectively.
    There are 1800 other posts about other subjects, including the individual mandate, the absence of cost controls, the failure of the Dems to engage the GOP last summer, and the intransigence of conservatives when there were attempts to engage.
    I’d be happy to bet that the individual mandate will not be thrown out. The opponents’ pleadings are legally weak and based on flawed logic. That is not to say the mandate as currently constructed is ‘right’ – but that’s not the point.

  7. I agree with TTUEagle with one qualification. It may be legit for the super-rich to self-insure, but “super-healthy” people of ordinary means are taking a big risk if they self-insure.
    I did everything right for 62 years and considered myself “healthy as a horse.” Then a routine colonoscopy revealed a malignant tumor.The ordeal which followed was unpleasant, but it would have been even worse if I’d had to pay for treatment out of pocket.

  8. All,
    This healthcare bill will not get people out of the ER. There were free and low cost clinic before this bill. The fact is people do not go to the doctor until something is wrong. We will still see people in our ER’s with colds, but now we will have a bankrupt system like social security. Thanks Mr. President and you Joe for destroying the very industry you report on.

  9. Lpantell
    it’s tough to destroy a health system that is already on life support. But I thank you for acknowledging the power wielded by the author of this blog. Now if I could only get my teenagers to understand how omniscient and all-powerful I am…
    There is ample evidence that those with insurance receive primary care at physicians’ offices fR more often than their uninsured brethren.

  10. The individual mandate will clearly pass legal muster because its provisions are not absolute. Per Sec. 1332, states can opt out as long as they provide residents with a plan that is budget-neutral for the federal government, provides members with qualified health plans that are equivalent to the federal requirements, and offer choice and competition through exchanges.
    The state-AG suits have, as they say, “no cause of action,” and will be thrown out by the first judge they go before. The resources used to carry on these Quixotic exercises in political grandstanding are a waste of taxpayers’ money at a time when states are cutting essential services to balance budgets.
    Furthermore, I can think of a number of situations in which the government requires you to make a purchase from a private — even a for-profit — company, or face a penalty.
    1) The Ambassador Bridge: The bridge that links Detroit to Windsor, Ont., Canada, is owned and operated by a private, for-profit company. This is the single busiest crossing between the U.S. and Canada. I can’t quote the penalties for failing to pay the toll, but I believe they are up to and including some jail time. Not to mention the immigration and/or customs hot water one would be in.
    2) The Unified Carrier Registration Agreement: The UCRA program requires that all motor carriers, brokers, freight forwarders, and leasing companies who operate in interstate or international commerce must pay an annual fee. Thirty-eight states are party to the agreement. Fees for registration are submitted to a private vendor/contractor with the moneys redistributed to states (after the vendor keeps a fee) for safety programs, road improvements, etc. Failing to register via the UCRA subjects the driver to a $300 fine per incident, and a single driver can incur fines in every jurisdiction he drives through, so a single trip through four states can incur four fines.
    3) Community Probation Departments: The probation departments in many jurisdictions around the country have been turned over to private contractors, with the for-profit Maximus (a company that serves many privatization efforts of government functions) being the largest. Folks sentenced to probation must not only pay the fine for their offense, which is collected by the probation company, but the fees for the probation company as well. The penalty for failing to do so is JAIL! Any Republicans out there want to weigh in on how this stands vis-a-vis freedom?
    4) Any other privatized government function: As we can see with Nos. 2 and 3 above, the consequence of privatizing government functions, while not inherently bad, is the creation of a situation whereby government forces an individual to purchase a good or service from a private company, or face a penalty. The precedent has been set.
    I am not a lawyer, so I can’t tell you if any of these government privatization efforts have been challenged legally, but if we want to game this all out to a worst-case scenario where the Supreme Court agrees with the state attorneys general and rejects the idea of forcing people to buy something from a private company, then the next logical consequence would be an unraveling of ALL contracts in service of privatization of government functions. Since privatization seems to be a standing proviso of Republican dogma, they may want to reconsider their position.

  11. I don’t have a problem with the idea of a *universal* mandate and I’m sure that the Supreme Court could come up with some sort of constitutional support for it.
    I don’t think though, that the court can credibly uphold the discriminatory mandate in the new legislation. Congress has essentially said that anyone who does not have a source for tax-free coverage must spend his own after-tax dollars on care. That unequal treatment undermines the whole structure.

  12. Rick,
    All of your examples involve choice. I do not have to cross that bridge, I do not have to be a motor carrier and finally I do not have to commit a crime.
    What your argument does clearly point out is I have to buy health insurance unless I am illegal, amish or muslim. The individuals who are not insured before this bill will still not be paying for their insurance we all will.

  13. Two questions on the mandate:
    1. Under what moral code should the government be allowed to require me to purchase health insurance? I would argue the only moral requirement here is that I pay for my medical care.
    2. Has any government ever amassed power and information over its citizens and failed to use it to oppress them and destroy their individual liberties?
    I have a third, actually. Especially for those who support this President’s Healthcare policies: Would you be ok with the Evil Bush-Cheney-Rove-Halliburton-Big Oil-Iraq-Neocon conspiracy having this much control over your life?
    Both Republicans and Democrats are complicit in bringing the country to this point. The GOP has been hypocritical, but their current arguments are valid, IMHO. The Democrats have been just plain nefarious.

  14. Steve – governments operate under laws, not moral codes. I’d also ask under what moral code is it acceptable for a hundred thousand of your fellow citizens to die prematurely due to lack of access to health care.
    re your second question, every government has information about its citizens, and most do not oppress them. and many governments have little information about their citizens and oppress them anyway. then again, it depends on your definition of ‘oppress’; dying early due to lack of access to health care might meet that definition.

  15. lpantell – not exactly. you DO have to cross that bridge if you want to get to the other side; if you are a motor carrier you DO have to comply. You are making a distinction without a difference.
    re the individuals who were (and remain) uninsured, you are correct in that those of us with more income – a LOT more – will subsidize their insurance. What you are missing is that ALL of us subsidize those without insurance today by paying higher premiums to cover the cost shifting by providers who have to provide care to the uninsured but don’t get paid to do so.

  16. My torts professor in law school said that everyone has a right to be a damned fool, and the law will not protect a person from his own foolishness.
    So, with the individual mandate, the government is doing just that, protecting fools from their own foolishness.

  17. Hi Chuck, and welcome to MCM
    I’d add that the reform attempts to protect us from the fools as well; we have to pay for their ‘freedom’ to not buy insurance by covering their costs when they inevitably need care.

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Joe Paduda is the principal of Health Strategy Associates




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